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A proposed bill in California that would outlaw providers from engaging in direct or indirect forms of digital discrimination has made it to the state senate.
By: Brad Randall, Broadband Communities
Providers operating in California who either directly or indirectly engage in what a new bill considers “digital discrimination of access” could face a future of lawsuits from the attorney general’s office.
The bill, sponsored by Asm. Mia Bonta, a Democrat, has already passed through the state assembly.
Earlier this month, the bill was referred to the state senate’s appropriations ‘suspense file,’ which is standard for bills that can have a financial impact on the state at large.
Paul Goodman, who serves as legal counsel with the Center for Accessible Technology, has testified on the legislation three times and said providers have provided an “enormous amount” of opposition.
Goodman said providers have taken most exception with a provision in the bill that allows broadband providers to be held liable for discrimination of access if they follow through on business decisions that “have had the practical effect of discriminating.”
It’s one of two standards Goodman said exist in the law. Providers can also be liable for digital discrimination of access if the state can prove that a provider undertook steps intending to discriminate, Goodman said.
“They’re trying to take the teeth out of it,” Goodman said, regarding providers’ efforts against the legislation.
Goodman said he believes the law, if passed, will change the connectivity landscape in California by ending what he called ‘digital gerrymandering.’
“It will make providers really think hard when they’re planning,” he said.
Goodman said the law is necessary because internet service providers, in his view, have engaged in digital discrimination of access in California.
“They said, ‘hey, we can make more money in these whiter, wealthier areas,'” he said. “So, they did not improve or build out their infrastructure in the areas which they viewed as less profitable, which happened to be black and brown communities, and low-income communities.”
The bill, AB 2239, has been actively supported by the California Alliance for Digital Equity (CADE), an advocacy group “focused on all forms of digital equity,” according to the group’s website.
“By passing AB 2239, California will become the first state in the nation to define digital discrimination as internet service providers’ business practices that have a differential impact on consumers based on their race, ethnicity, color, religion, or national origin,” CADE’s website stated.
According to CADE’s website, the bill “will adopt a definition of “digital discrimination of access” that echoes the definition adopted by the Federal Communications Commission (FCC) in fall 2023.”
That definition, adopted by the FCC in November with a 3-2 vote along party lines, defined the term “digital discrimination of access” as “policies or practices not justified by genuine issues of technical or economic feasibility that differentially impact consumers’ access to broadband internet access service based on their income level, race, ethnicity, color, religion or national origin, or are intended to have such differential impact.”
The FCC’s adopted rules also allowed for possible instances of discrimination of broadband access to be investigated, and for potential penalties to be assessed.
Organizations like the National Multifamily Housing Council (NMHC) have tried to appeal the FCC’s digital discrimination rules in federal court.
The FCC Chairwoman, Jessica Rosenworcel, has previously said the FCC was compelled to adopt the language because of Section 6506 of the Bipartisan Infrastructure Law, which directed the FCC to tackle digital discrimination.
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